State v. Goldsmith
| Decision Date | 20 February 1969 |
| Docket Number | No. 1842,1842 |
| Parties | STATE of Arizona, Appellee, v. David L. GOLDSMITH, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., Carl Waag, Asst. Atty. Gen., for appellee.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by David L. Haga, Phoenix, for appellant.
The defendant, David L. Goldsmith, hereinafter referred to as defendant, was convicted in the Superior Court of Maricopa County of the offense of child molesting, a felony, and sentenced on the 26th day of July 1967, to serve a term of not less than one nor more than two years in the Arizona State Prison, to commence March 16, 1967, the date he was first arrested. From the judgment and sentence he appeals.
The defendant, in his evidence, shows that he came to live in Arizona in November 1966 and that the family moved into a trailer court located in Tempe during the month of November of that year. During this time, the defendant was employed as a salesman in a furniture store. The trailer in which the family was residing was located across from and near the vicinity of the store. Prior to this change, the defendant's evidence would indicate he had lived a normal life. He had been raised in a religious family environment, had attended Miltonvale Western College, a religious college in Miltonvale, Kansas, where his father was a professor, and had pursued a course of study leading to a degree in theology. He was married to Janet Goldsmith and there was one child born as a result of this marriage, a witness in this case. He was unable to complete his college course because of his marriage.
It was while defendant was working at the furniture store, on or about the 16th day of February, 1967, that the act for which he was convicted was alleged to have occurred. The act of child molesting for which he was tried was fellatio perpetrated upon his child. The defendant testified that his wife brought their child to the store for him to care for during the time that she was gone to a beauty parlor; that during the course of the morning the child indicated it was necessary for her to use the bathroom; that because of the unsanitary condition of the restroom in the furniture store, he sent the child to the bathroom in the trailer house. The defendant also testified that, while he was waiting on a customer, he noticed his daughter outside the trailer with very little clothing on. He stated he stopped what he was doing, picked her up and took her to the trailer and there placed a small suit dress on her. He denied the act which was testified to by the child.
The child testified in some detail in regard to commission of the act. The mother testified that some ten months before, in Nebraska, she had seen the defendant permitting the child to play with his private parts, although only for an instant, which she had not reported and which she had not thought much of at the time.
The defendant was convicted upon the testimony of the two witnesses, the child and the mother. The child was approximately four and one-half years old at the time the alleged act was committed and five years old at the time she gave her testimony. She was found by the court to be competent to testify.
The only witness for the defense was the defendant himself. He was asked the question on cross-examination:
'Q * * * Have you ever committed an unnatural act of the sort that Linda testified to, with anyone?'
The objection of defendant's attorney was overruled and the answer was permitted, which answer was a denial. Counsel for defendant then moved for a mistrial, which was denied. In a discussion at the bench the county attorney took the position that the defendant's denial of the specific charge 'put in issue, the entire area of this Defendant's committing unnatural acts' and
'This man's entire sexual conduct is in issue, the entire area of his sexual conduct is in issue, and I believe I am entitled to inquire into the information, if, in fact, he has a propensity for this type of act, I have a right to show it.'
Defense counsel objected to the question but the court overruled the objection. The question was read back and another defense objection overruled. The county attorney then rephrased the question by specifying the particular unnatural act and asking if the defendant had ever performed it with 'any male or female.' The defendant answered, 'No.' Another defense motion for a mistrial was denied.
Subsequently the State recalled the defendant's wife to the stand and inquired as to whether, during their marital relations, the defendant had ever required her to perform the particular act, to which she replied in the affirmative. Counsel for the defendant contends that both the asking of the question of defendant on cross-examination and the court's admission of the answer was error. Also that it was error to permit the defendant's wife to testify in regard to her acts of fellatio performed with her husband.
At the conclusion of the trial, the court, after a lengthy discussion with counsel, charged the jury as follows:
'You are further instructed that the rebuttal testimony of Mrs. Janet Goldsmith is presented only for the limited purpose of impeaching testimony given by the Defendant in his own behalf, and that you are to consider Mrs. Goldsmith's testimony for that limited purpose only.'
Counsel also contends that the giving of this instruction was error.
This Court has consistently held that on cross-examination specific acts of misconduct cannot be shown in the absence of a conviction of that crime. State v. Gallegos, 99 Ariz. 168, 407 P.2d 752; State v. Smith, 96 Ariz. 150, 393 P.2d 251.
State v. Harris, 73 Ariz. 138, 238 P.2d 957.
In State v. Johnson, 94 Ariz. 303, 383 P.2d 862, we held that even if there is no objection made to such cross-examination and the witness denies the misconduct, the State may not present proof to impeach him. The Johnson case is particularly applicable here since the county attorney argued at trial that the defendant's general denial of ever having committed the specific misconduct opened the door to the entire area of his sexual conduct.
'The state, however, argues to this court a purported exception found in California whereby the state may be allowed to introduce evidence showing specific acts of misconduct not amounting to felony convictions when the defendant makes broad, all-inclusive statements that he never at any time committed an offense of the kind for which he is on trial. This exception is based on the theory of curative admissibility where the defendant has overemphasized his absolute innocence and the failure to rebut might be damaging to the state's case. (Cases cited.)
'We think, however, that the prejudicial effects of showing specific acts of misconduct which are not sustained by a conviction are such as to greatly outweigh the purported damaging effect to the state's case. The danger is twofold: First, that the jury may conclude that the defendant is a 'bad man' and convict on lesser evidence than might ordinarily be necessary to support a conviction, and second, that if the door is opened to such evidence, the defendant is in danger of having to defend every incident of an entire lifetime in a single trial. We adhere to our prior holdings rejecting the suggested exception.
State v. Johnson, supra, 94 Ariz. at pp. 305--306, 383 P.2d at p. 863.
In State v. McDaniel, 80 Ariz. 381, 298 P.2d 798, we referred to acts which show 'specific sexual inclination.' In this case we said:
'In the Arizona case of Taylor v. State, 55 Ariz. 13, 19, 97 P.2d 543, 545, evidence of acts of sexual relations with girls other than the prosecuting witness was held admissible within the exception pertaining to evidence of similar offenses tending to show
'* * * a system, plan or scheme embracing the commission of two or more crimes so related to each other that the proof of one tends to establish the other, * * *.'
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...affecting veracity, in the absence of a conviction of that crime. State v. Harris, 73 Ariz. 138, 238 P.2d 957 (1951); State v. Goldsmith, 104 Ariz. 226, 450 P.2d 684 (1969). In State v. Ramos, 108 Ariz. 36, 492 P.2d 697 (1972), however, we held that a defendant should be allowed, in cross e......
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